california narcotic officers association training article

7/29/2019 California Narcotic Officers Association Training Article

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INITIAL CONTACTS W ITH PERSONS CLAIM INGPROTECTIONS UNDER CALIFORNIAS

M EDICAL M ARIJUANA LAW S AND STATUTESBy Seth Cimino, InvestigatorlK-9 Handler; Del Norte County Sheriff's Office, Crescent City, CA

Imsure no one will disagree with the following state-ment: ''Dealing with persons who claim they're medicalmarijuana users is a nightmare." Yes, it can be. Thereare over 20 California Health and Safety Code sections deal-ing with medical marijuana laws, statutes, definitions andapplications. Plus, it seems case law and court decisions arealways changing.

About six years ago my supervisor asked me if I'd beinterested in taking over our marijuana investigations at ouragency. I said sure. Little did I know what was in store forme? Never have I run into so many people who feel so pas-sionate about their "medicine". No one is going to argue withyou when you catch them with meth, cocaine or Heroin ....but marijuana is a whole different story.

I was a little taken back by what persons on both sides ofthe fence (pro-marijuana vs. law enforcement) think of andfeel about the entire "medical marijuana" issue. Knowingwhat I know now I'd definitely call this "medical marijuanathing" an epidemic that is infecting our society. This "infec-tious spillover" is even affecting us (law enforcement). Alsothink about the fact that the next generation of law enforce-ment in this state has grown up thinking marijuana is a "medi-cine". We must be educating ourselves as law enforcementofficers on what the current drugs trends are. Ifwe don't wewill be further behind the curve then we already are.

Unfortunately, many of us don't want to deal with themarijuana issue because;

(1) Its just "weed", it's no big deal and who cares. It's notthe "hard stuff'. My response would be "you're right" it's notthe hard stuff, but according to a 2009 University of CaliforniaLos Angeles study, marijuana is the number one drug personsare going to rehab for in Los Angeles County. So, when allis said and done wecan see that it's not "just weed". Whenwas the last time you contacted a meth, cocaine or Heroinaddict that told you the drug they were/are addicted to wasthe first illicit drug they ever used. They won't. They'll tellyou they started with marijuana. Marijuana is addictive anda gate way drug.

(2) The California laws are way too complicated and Idon't want to deal with it. My response would be ''they'renot as complicated as you think". The marijuana laws/statutesset forth in Proposition 215 (The Compassionate Use Act of1996) and Senate Bill 420 (The Medical Marijuana ProgramAct of 2003) are pretty black and white. They might ap-

pear complicated, but if you know the right questions to apersons claiming medical marijuana protections and, moimportantly, the answers they should give, you can be vesuccessful in your initial contacts with "medical marijuanausers. I put "medical marijuana" in quotes because techncally there is no such thing. There is marijuana and medicmarijuana laws, but no "medical marijuana" in a crude smoable form or edibles made by a stoner.

Let's also make something real clear, marijuana is ILLGAL. Health and Safety Code sections 11357-11360 addrethat. Persons claiming protections under California's medicmarijuana laws and statutes MUST operate within the guidlines set forth in Proposition 215 (CUA) and Senate Bi1l42(MMP). If they "color" outside the lines of the immune acthey are subject to criminal penalties.

So, the questions now becomes what can "Qualified Ptients", "Primary Caregivers", "ID CardHolders", "Groupsetc. do and not do according to the guidelines in the Heaand Safety Code. The following is a list of the immuacts persons can partake in and still claim protections undProposition 215 (CUA) and Senate Bill 420 (MMP). Alisted are the Health and Safety Code sections covering somimportant definitions and each immune act certain persocan partake in.Qualified Patients (defined in 11362.7(0 HS) can ...

1. Possess [1l362.S(d) HS]2. Cultivate [11362.S(d) HS]3. Transport [11362.76S(b)(1) HS]4. Process [11362.76S(b)(1) HS]

Primarv Caregivers (defined in 11362.7(d) HS) can ..1. Possess [11362.S(d) HS]2. Cultivate [1l362.S(d) HS]3. Transport [1l362.76S(b)(2) HS]4- Process [1l362.76S(b)(2) HS]5. Deliver [1l36276S(b)(2) HS]6. Administer [11362.76S(b)(2) HS]7. GiveAway [1l362.76S(b)(2) HS]8. Receive Compensation for Services Provide

[1l362.76S(C) HS]9. Receive Compensation for Out-of-Pocket

penses [1l362.76S(C) HS]MMP ID Card Holders (defined in 11362.7(e) HS) can

1. Possess [1l362.71(e) HS]2. Cultivate [1l362.71(e) HS]


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3. Transport [11362.71(e) HS]4. Deliver [1l362.71(e) HS]

Individuals (defined in 11362. 765(b) (3) HS) can ...1. Assist in Administration [11362.76S(b)(3) HS]. 2. Teach Cultivation/Administration [11362.76S(b)

(3 ) HS]Physicians (defined in 11362.7(a) HS) can ...

1. Recommend Medical Use [11362.S(c) HS]Groups (defined in 11362.775 HS) can. . .

1. Collectively and Cooperatively Associate to Cul-tivate [11362.77SHS]

That's it. These are the only acts persons can partake into claim medical marijuana law protections.THE DOCTOR'S RECOMMENDATION

Now, let's switch gears for a moment and talk about the"Doctor's Recommendation". Does the person you are deal-ing with have one? Ask to see it. You have the right to (therecommendation and ailments not HIPAA protected). Youneed to know for your investigation. Ask to see their originaldoctor's recommendation. There are lots offakes. Rememberyour investigation does not stop because persons "claim"215/420 privileges (see People v. Strasburg). You can callthe doctor to verify the recommendation. The doctor's nameand number should appear on the recommendation.

Here are a few more issues involving the recommendation.What happens if the person you're dealing with says they havea recommendation but do not have it with them or if they saytheir doctor gave them a "verbal" recommendation? Okay,make them prove it. You can seize their "medicine" and takeother appropriate actions (citation or arrest). When/if thisgoes to court let's make their doctor come in and testify tothe recommendation they gave their patient.

Also, these recommendations technically do not expire(see People v.Windus), but that recommendation given for the"medical marijuana" must be and stay reasonably related tothe qualified patient's current medical needs. Okay then, whydo almost all the recommendations we see have an expirationdate on them? One reason ... more money for the doctor. Inthe case People v. Trippett, itwas established that the amountof "medical marijuana" a qualified patient can possess must be"reasonably related" to the patient's "current medical needs".For example, if they tell you they smoke a gram a day (aboutone ounce a month) for their "serious illness" and they havefive pounds of processed on them, that's way too much. Attheir current usage rate it would take them over six years touse all that weed.STREET CONTACTSSo how do we question these individuals who claim 215/420

privileges? I like to call the following questions the "Big 7"am not trying to re-invent the wheel here, but I feel these sevquestions can help you considerably in your initial contacand subsequent investigations with "medical marijuana" useMany questions can stem off of these seven, but the key is"lock" your marijuana user into a statement. Don't forgetshow "compassion" when asking these questions. You amore than likely to get cooperation from "Qualified PatienPrimary Caregivers", etc. if you use soft words ("think me/ speak nice"). These people will normally talk to you. Tfollowing are the "Big 7" questions and some additional quetions that might stem off of the seven.QUESTION#iWho is your doctor?

Where was your appointment? (close or 100'Smiles away) Tell me about your appointment. Was it like other doctor's visits you've been to

the past? Would you send your mother or child to this do

tor if they were very sick and need accurate anappropriate medical care? (One of my favoriteYou'd be surprised how many people say "no"]

How did you pay?

Some things to think about when asking these questions.Is their recommendation generic or does it have a specidosage or plant count on it? Remember per the footnotesthe People v. Kelly decision, a doctor CANNOT recommena plant count ...only a dosage amount. (2) Is it a blanketagnosis for all qualified patients or specific per the qualifpatients specific current medical needs? (3) Is there a treof qualified patients doctor shopping?QUESTION #2What medical condition do you have that would require yto use medical marijuana?

Does their answer meet the "seriously ill" stadard set forth in the Health and Safety Code? Do they know what their ailment is? Discuss each ailment with them? Is the "ailment/illness" short term or chronic?

QUESTION #3How much marijuana ("medicine'') do you use a daysustain (or relieve your ailments)?

Does it seem like an appropriate amount to useContinued on next pa


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Continued from previous page-A person should know how much they use. I know howmuch legitimate medicine I need to help alleviate my ill-ness or ailments. What is appropriate for their "currentmedical needs"? Generally law enforcement will say that.3 to5 of a gram is a single dose or joint (39-DEA / 59-NIDA). "Medical marijuana" advocates state that 1gramis a single dose (NOT 10, 15 , 20 grams or an ounce a day).A good rule of thumb for "reosonabieness''would be abouttwo ounces a month for three months.QUESTION #4How long does the dosage usually last you?You may have to start doing some math here, but basi-cally try to figure out how long these people are "high".QUESTION #5What time of day do you use?

Are they using before work, on their lunch break,at home, before bed?

What do they do for a living? Are they driving oroperating machinery?

Per ll362.785 an employer may terminate an employeewho tested positive for marijuana.QUESTION #6What is your preferred method of use?

Most people smoke it (pipe, joint, bong). If theyhave bud they are smoking it. It is too valuableand potent to be wasting in edibles/butter.

Are they eating it? (leaves, shake, etc.) or using itin salves, wraps or tinctures.

Remember, hash, hash oil, "Honey Oil" are illegal perll357( a) HS. They are considered concentrated canna-bis and therefore have no protections under California'smedical marijuana laws.QUESTION #7Do you cultivate orpurchase marijuana? If so . .. where.forwhom or from whom?

.They may admit to growing dope in their home.Good probable cause for a search warrant.

How big is the grow? Is it reasonable to the qualified patient's "needs"? Do you grow alone or with others? (Collective /

Co-op grows)

What's your yield per grow cycle and how mangrow cycles per year?

How much do you purchase? How often do you purchase it? How much do you pay? Where or from whom do you purchase it?

You can also now open the "Primary Caregiver" windowin your conversation with them. A primary caregiver caalso be a "Qualified Patient': A primary caregiver can cafor more than one qualified patient in the county they liin and only one qualified patient outside of the countthey live in (Health and Safety Code sections ll362. 7(dXand ll362. 7(dX3)). Remember the relationship betweenqualified patient and their primary caregiver must haalready existed before the "marijuana care giving" beginand that marijuana care giving alone does not meet tdefinition set forth in ll362. 7 (d ) HS (People v . Mentch)If a primary caregiver just provides marijuana-related"services" they are subject to criminal penalties per ll35ll360 of the Health and Safety Code.

Hopefully I haven't confused you more than you alreadmight be. If we can take the time to go the extra milethese cases we can be very successful with our contacts asubsequent investigations. I also want to mention two othitems of great importance. (1)Make sure you always folloyour agency's policies and procedures when dealing wmarijuana and medical marijuana laws, and (2) confirm wyour local District Attorney's Office that they will work wiyour agency and prosecute these cases. These investigationrequire a partnership between your agency and the DA.

Marijuana is California's "cash crop". It's like the "wiwild west" in this state, because there is so much money tomade in marijuana. These illegal profiteers are taking advatage of the compassion of the California voters who votedProposition 215 and are hiding behind its statutes to possescultivate and sell marijuana for a profit. Knowledge is powThe more law enforcement officers, agency administratorprosecutors andjudges we can educate on the "ins and outs"California's Medical Marijuana Laws the stronger united frowe can establish. I can guarantee you the "pro-marijuanalobby is looking for ways to trip us up as we speak.

I would encourage you to contact me at the Del NorCounty Sheriff's Office (Northern California) if you have aquestions for me. Two other law enforcement experts in tfield are Glenn Walsh (Los Angeles Sheriff's Departmenand Eric Bixler (Los Angeles Police Department). Both, Isure, would be happy to assist you in this fight as well. Goluck and stay safe ..


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Detective JuanSandoval of theNational CityPolice Departmentwith 2011President JimHodges

20:11 Conferre ce Issue ....e e e a e e 00e e e e e e e e " e e 00President's Message 0

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